Posted by: Patricia Salkin | July 18, 2019

IN Appeals Court Holds Nuisance Claims Were Barred by the Right to Farm Act

This post was authored by Matthew Loeser, Esq.

Martin Richard Himsel, Janet L. Himsel, Robert J. Lannon, and Susan M. Lannon filed a complaint, alleging nuisance, negligence, and trespass, against Samuel T. Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC, and Co-Alliance, LLP. The Plaintiffs alleged in their complaint that the concentrated animal feeding operation (“CAFO”) placed on 4/9 Livestock’s property in 2013 created noxious odors that were so extreme as to greatly diminish the Plaintiffs’ quality of life, reduce their property values, and alter their daily activities. In their complaint, the Plaintiffs also challenged the constitutionality of Ind. Code § 32-30-6-9, which was commonly known as the Right to Farm Act (“RTFA”), and Ind. Code § 15-11-2-6(a), which required the Indiana Code to be construed to “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever changing technology.” The trial court granted the Defendants’ motion for summary judgment and Plaintiffs appealed.

The Defendants first argued in their motion for summary judgment that the RTFA barred Plaintiffs’ nuisance claim, as well as their other related claims. The record indicated that the farmland in question had been actively farmed for decades. Furthermore, Plaintiffs acknowledged that no significant change had occurred in the type of the agricultural operation at the Farm, as strictly defined under subsection (d)(1) of the RTFA. Instead, Plaintiffs argued that the RTFA was not a bar to their nuisance action, as the CAFO would have been a nuisance when farming originally began on the Farm. The court rejected this contention, finding Robert Lannon knowingly built his residential home in the middle of farm country, and the Himsel Plaintiffs lived and farmed on their property for a number of years before selling off much of their land and changing the use of their home to purely residential. Moreover, none of the Plaintiffs could argue that their residential use of their property was being negatively impacted, since the use of the Farm changed from crops to hogs – a use that would not have been a nuisance in or around 1941 when the agricultural operation began. Finally, the court held that requiring a defendant farmer to establish that his or her particular CAFO would not have been a nuisance when the agricultural operation began on the locality would negate the protections of the RTFA.

The court further noted that the RTFA provides an exception where an alleged nuisance results from the negligent operation of the agricultural operation or its appurtenances. Here, the evidence provided no indication that the CAFO had been negligently operated by 4/9 Livestock or had violated IDEM regulations. Plaintiffs also brought a trespass claim purportedly based on “the unlawful physical intrusion of the CAFO’s noxious emissions into their properties and homes.” The court found that permitting the plaintiffs to avoid the application of the Texas RTFA by pleading a nuisance action as a trespass would “eviscerate the statute and deny [he defendants the protection intended by the Legislature when it passed the Right to Farm Act”. As such, this claim was rejected by the court.

The Plaintiffs next claimed that the RTFA was unconstitutional as applied to them because it violated the Open Courts Clause, the Takings Clause, and the Equal Privileges and Immunities Clause of the Indiana Constitution, as well as the federal Takings Clause. The court found that through the RTFA, the legislature explicitly and unambiguously stated its intent to protect the rights of farmers by limiting the circumstances under which farmers were subject to nuisance actions. Accordingly, the Plaintiffs’ various claims that the RTFA was unconstitutional were unavailing, and the court did not reach the question of the constitutionality of the Agricultural Canon due to judicial restraint. The court therefore held that the trial court properly granted summary judgment in favor of the Defendants on all claims.

Himsel v. Himsel, 122 N.E.3d 935 (IN App. 4/22/2019)


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